| Mass. | Sep 15, 1850
The demandants claim sixteen one hundred and seventy-fifth parts of the land described in the writ, as heirs at law of Hepzibah Day, wife of Jedediah Day, and daughter of lieutenant John Miller, deceased. A large estate, of which the demanded premises are parcel, belonged to lieutenant John Miller, who died in 1792, seized intestate, leaving a widow, Lucretia, and five children; three sons, John, Abner, and Asaph, and two daughters, Merab, wife of Charles Ball, and Hepzibah, wife of Jedediah Day.
The widow’s dower was assigned and set out to her by metes and bounds in due course of law, and the residue was distributed amongst the five heirs. The question now relates to that which was set off to the widow as dower.
By this assignment, the widow acquired a freehold in the estate set off to her, being an estate for her own life, and the sons and daughters took a reversion, each of one fifth, of the land thus assigned in dower, expectant upon the termination of the widow’s estate for life.
It is contended, that this life estate was surrendered, abandoned, or relinquished, by an agreement made before 1806, by the life tenant, who had intermarried with one Barnes, by which, in consideration of forty dollars paid by each of the three sons, and the husbands of the two daughters, she agreed to relinquish to them her right of dower ; but no written conveyance was made by her of her interest in the land. This could not amount to an extinguishment or merger of the life estate, because by the statute, every surrender, as well as every assignment or grant of any interest in lands, must be made by deed or note in writing. St. 1783, c. 37, § 1. Her life estate therefore continued until 1833, when she died.
Hepzibah Day died in 1823, never having had any children, and the question is, whether by alienation, disseisin, estoppel, or otherwise, her one fifth of this reversion was divested, or whether it descended to her collateral heirs. In 1806, a division was made amongst the five reversioners by deed, to hold in severalty, except that the conveyance to Ball and Day by John, Abner, and Asaph, was to hold two fifths in common, and also except that, though Ball and Day held in right of
The part of the dower estate thus released by John, Abner, and Asaph, was held three tenths to Ball and Day each in their own right, by the last conveyance, and one fifth to each of them and their respective wives, in right of the wives.
In 1819, Ball and wife conveyed their share and interest in the same to Jedediah Day, in fee. Then, Day held the whole of the reversion in the dower estate, four fifths in fee, in his own right, and one fifth in right of his wife, during his and her joint lives. Having had no child born, he was not tenant by the curtesy.
What then prevented the heirs at law of Hepzibah Day from taking the estate ? It was an estate in expectancy, depending on the termination of the life of the widow, who survived till 1833. But it was a vested estate, and would pass by descent. It is stated in the argument, though I believe it does not appear in the report, that Hepzibah Day’s three brothers, John, Abner, and Asaph, and her sister Merab Ball, were all then living. If so, they took one fourth each of Hepzibah Day’s one fifth of the dower estate. If either was dead leaving children living, such children would take, by right of representation, the one share which the deceased parent would have taken, under the rule, which allows the right of collaterals by representation to the degree of brothers’ and sisters’ children, but not further. If the sister or either of the brothers died, during the life of the tenant for life, the share of such heir would in like manner descend to his heirs. But we have not thought it necessary to ascertain minutely the shares of the several demandants; the great question is, whether they can claim any thing by descent from Hepzibah Day.
In defence of this claim, two grounds are taken: —
1. That by the deeds of Abner Miller, John Miller, and Asaph Miller, in 1806, to Ball and Day, and by the subsequent deed of Charles Ball and his wife to Jedediah Day, Day became entitled to the whole estate, comprising the widow’s dower,*40 with special warranty against the grantors themselves, and all persons claiming under them, and that the demandants, being all heirs claiming under those grantors, are estopped by the warranty of their ancestors. It is then said that Day, being thus seized of the estate, devised it to his son Jedediah, a son by a subsequent marriage, from whom by mesne conveyances,, it came to Ewing the tenant.
We have examined those deeds; they are both quitclaim deeds, in the usual form, of all the grantor’s right, title, and interest in the land, with the usual clause in the habendum, “ so that neither I the grantor, nor any person claiming under me, shall have, claim,” &e. Such a clause is undoubtedly a good qualified warranty. Newcomb v. Presbrey, 8 Met. 406; Fairbanks v. Williamson, 7 Greenl. 96; Trull v. Eastman, 3 Met. 121" court="Ky. Ct. App." date_filed="1860-09-13" href="https://app.midpage.ai/document/nolle-v-thompson-7129880?utm_source=webapp" opinion_id="7129880">3 Met. 121. But to what does this warranty apply ? Obviously to the premises, that is, the land, estate, or interest, whatever it be, which the deed, in its descriptive part, purports to convey. The principle is, that if any person, who, in terms conveys land or any specific interest in land, with warranty, and does not own it, afterwards acquires that same land or specific interest, such acquisition enures to the benefit of the grantee, because the grantor and those who are privy in estate with him are estopped to deny, against the terms of his warranty, that he had the title in question. The warranty is coextensive with the estate, right, or interest, which the deed purports to pass. But such warranty does not apply to the present case. John Miller and his brothers, when they conveyed to Ball and Day with warranty against themselves and their heirs, had an estate and interest derived by descent from their father, and to this, and this alone, both the grant and the warranty applied. So of Ball and wife, when they conveyed to Day. But they did not purport to grant or warrant an estate, which they might at a future time derive by descent from their sister, Hepzibah Day. They are therefore not estopped by that warranty, from claiming this estate by a new and distinct title. Blanchard v. Brooks, 12 Pick. 47; Comstock v. Smith, 13 Pick. 116. The case of Trull v. Eastman, cited by the defendant, is no authority for a contrary doctrine. The deed in that case was a
2. The other ground is, that the tenant is entitled to the land by open and adverse possession, for twenty-seven years, by himself and those under whom he claims.
It is stated in the report, that Jedediah Day had the open and sole occupation from May, 1819, to his death in December, 1837. To 1823, he had possession, in right of his wife, of her one fifth, which is the subject of this controversy, and his possession was adverse to nobody. To 1833, the life estate of the widow continued, and the presumption is, that he held under her. If he did not, he was a wrongdoer as to her, but his possession was not necessarily adverse to the reversioners, and did not operate to disseize them, but at their election.
The right of entry of the reversioners accrued at the death of the tenant for life in 1833; and even though she may have forfeited her life estate by some previous act, so that the reversioners might have entered earlier ; still they were not bound to do so, but had a right to enter then, how long soever the particular tenant might have been disseised; and the statute of limitations begins to run from that time. Tilson v. Thompson, 10 Pick. 359.
If, therefore, the tenant was at liberty to connect the adverse possession of Jedediah Day and that of his son Jedediah with his own, it would not make twenty years, from the time the right of entry accrued, and therefore the right of aciion is not barred by the statute of limitations.